Henry B. Higgins
Henry Bournes Higgins King's Counsel|KC (30 June 1851 – 13 January 1929), known by his initials, was an Australian lawyer, politician, and judge. He served on the High Court of Australia from 1906 until his death in 1929, after briefly serving as Attorney-General of Australia in 1904.
Higgins was born in what is now Northern Ireland. He and his family immigrated to Australia when he was 18, and he found work as a schoolteacher while studying law part-time at the University of Melbourne. He was admitted to the Victorian Bar in 1876, and built up a substantial practice specialising in Equity (law)|equity law. Higgins came to public attention as a prominent supporter of Irish Home Rule movement|Irish Home Rule. He was elected to the Victorian Legislative Assembly in 1894, and represented Victoria at the Australasian Federal Convention, where he helped draft the Constitution of Australia|new federal constitution. He nonetheless opposed the final draft, making him one of only two delegates to the convention to campaign against federation.
In 1901, Higgins was elected to the new Parliament of Australia|federal parliament as a member of the Protectionist Party. He was sympathetic to the Australian labour movement|labour movement, and in 1904 briefly served as Attorney-General in the Australian Labor Party|Labor Party minority government led by Chris Watson. In 1906, Prime Minister Alfred Deakin decided to expand the High Court bench from three to five members, nominating Higgins and Isaac Isaacs to the court. Higgins was usually in the minority in his early years on the court, but in later years the composition of the court changed and he was more often in the majority. He also served as president of the Commonwealth Court of Conciliation and Arbitration from 1907 to 1921. In that capacity, he wrote the decision in the influential Harvester case, holding that a legislative provision for a "fair and reasonable" wage effectively required a living wage.
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Early life and education
He was born in Newtownards, County Down, Ireland, the son of The Reverend|The Rev. John Higgins,( Irish Independent, 8 February 1906. p. 7.) a Methodism|Methodist minister, and Anne Bournes, daughter of Henry Bournes of Crossmolina. Ina Higgins, an early feminist, was his sister and Nettie Palmer, poet, essayist and literary critic, was a niece. The Rev. Higgins and his family emigrated to Australia in 1870.
H. B. Higgins was educated at Wesley College, Dublin|Wesley College in central Dublin, Ireland, and at the University of Melbourne, where he graduated in law. He practised at the Melbourne bar from 1876, eventually becoming one of the city's leading barristers (a King's Counsel|KC in 1903) and a wealthy man. He was active in liberal, radical, and Irish nationalism|Irish nationalist politics, as well as in many civic organisations. He was also a noted classics|classical scholar.
Colonial politics
In 1894, Higgins was elected to the Victorian Legislative Assembly as MLA for Electoral district of Geelong|Geelong. He was a supporter of George Turner (Australian politician)|George Turner's liberal government, but frequently criticised it from a left-wing point of view. He supported advanced liberal positions, such as greater protection for workers, government investment in industry, and votes for women. In 1897, he was elected as one of Victoria's delegates to the Constitutional Convention (Australia)|convention which drew up the Australian Constitution. At the convention, he successfully argued that the constitution should contain a guarantee of religious freedom, and also a provision giving the federal government the power to make laws relating to the conciliation and arbitration of industrial disputes.
Despite these successes, he opposed the draft constitution produced by the convention as too conservative, and campaigned unsuccessfully to have it defeated at the 1899 Australian constitutional referendums, 1898–1900|Australian constitutional referendum. This alienated him most of his liberal colleagues, and also from the influential Melbourne newspaper, The Age. Higgins also opposed Australian involvement in the Second Boer War, a very unpopular stand at the time, and as a result, he lost his seat at the 1900 Victorian election.
Federal politics
In 1901, when federation under the new constitution came into effect, Higgins was elected to the first Australian House of Representatives|House of Representatives for the working-class electorate of Division of Northern Melbourne|Northern Melbourne. He stood as a Protectionist Party|Protectionist, but the Australian Labor Party|Labor Party did not oppose him, regarding him as a supporter of the labour movement. The Labor Party's confidence in him was shown in 1904, when Chris Watson formed the first federal Labor government. Since the party did not have a suitably qualified lawyer, Watson offered the post of Attorney-General to Higgins. He is the only person to have held office in a federal Labor government without being a member of the Labor Party.
Robert Garran, the Secretary of the Attorney-General's Department (Australia)|Attorney-General's Department, found Higgins difficult to work with, stating that "for the first week or two I could not induce him to sign even the most routine and trivial paper until after a full explanation [...] the slowing-up of the machine was often embarrassing". Higgins also received criticism for his failure to regularly attend parliament, which left Watson and Billy Hughes having to explain his ministerial actions. The Melbourne Argus remarked that he "attends sometimes for prayers and retires spiritually refreshed".( McMullin (2004), p. 99.) He was also attacked by The Bulletin (Australian periodical)|The Bulletin, which observed that he "has had an unparalleled opportunity to demonstrate his worth as legal ally of the Government, and all the demonstration that he has effected in the House could be contained in a paper bag".( McMullin (2004), p. 100.) According to Ross McMullin, Higgins "approved of the Labor Party and its objectives [...] but he remained outside the party and did not identify himself with it". However, his contributions to cabinet discussions were appreciated by his colleagues, and Watson was happy to defend him against the attacks from the media.
High Court
Higgins was an awkward colleague for the Protectionist leadership, and in 1906 Deakin appointed him as a Justice of the High Court of Australia as a means of getting him out of politics, although he was undoubtedly qualified for the post. In 1907, he was also appointed President of the newly created Commonwealth Court of Conciliation and Arbitration, created to arbitrate disputes between trade union|trades unions and employers, something Higgins had long advocated. In this role, he continued to support the labour movement, although he was strongly opposed to militant unions who abused the strike weapon and ignored his rulings.
Higgins was one of only eight justices of the High Court to have served in the Parliament of Australia prior to his appointment to the Court; the others were Edmund Barton, Richard O'Connor (politician)|Richard O'Connor, Isaac Isaacs, Edward McTiernan, John Latham (judge)|John Latham, Garfield Barwick, and Lionel Murphy. He was also one of two justices to have served in the Parliament of Victoria, along with Isaac Isaacs.
Harvester case
In 1907, Higgins delivered a judgement which became famous in Australian history, aknown as the "Harvester Judgement". The case involved one of Australia's largest employers, Hugh Victor McKay|Hugh McKay, a manufacturer of agricultural machinery. Higgins ruled that McKay was obliged to pay his employees a wage that guaranteed them a standard of living that was reasonable for "a human being in a civilised community", regardless of his capacity to pay. This gave rise to the legal requirement for a basic wage, which dominated Australian economic life for the next 80 years.( T.J. Kearney, The life and times of Henry Bournes Higgins, politician and judge (1851-1929)
World War I
During World War I, Higgins increasingly came into conflict with the Nationalist Party of Australia|Nationalist Prime Minister Billy Hughes, whom he saw as using the wartime emergency to erode civil liberties. Although Higgins initially supported the war, he opposed the extension of government power that came with it, and also opposed Hughes' attempt to introduce conscription for the war. In 1916, his only son Mervyn was killed in action in Egypt, a tragedy which made Higgins turn increasingly against the war.
Final years
The postwar years saw a series of bitter industrial confrontations, some of them fomented by militant unions influenced by the Industrial Workers of the World or the Communist Party of Australia. Higgins defended the principles of arbitration against both the Hughes Government and militant unions, although he found this increasingly difficult. Postwar governments appointed conservative justices to the High Court, leaving Higgins increasingly more isolated. In 1920, he resigned from the Arbitration Court in frustration, but remained on the High Court bench until his death in 1929. In 1922, he published A New Province for Law and Order, a defence of his views and record on arbitration.
Australian Ideals
Henry wrote a famous article about key features of Australian idealism in 1902 'It is clear that in Australia there is a struggle being waged between two conflicting principles – The commercial principle and the principle of solidarity – the principle of private interest against the principle of common interest.' Read here
On White Australia
There is still room for great and heroic characters within the bounds of Australia. I sincerely hope that as he has been in the old country, and has been convinced by his experience here of the need there is for legislation of this character, he will be able to transmit to his descendants to all generations the importance of keeping Australia for the white people. I hope that no attempt will be made to make party capital out of this matter. There have been some indications in that direction. I am proud to see that all parts of the House seem to concur in the view that we should try to keep this continent, which is almost the only temperate part of the world that is available for settlement, exclusively for the white races.
I am quite sure that every one will credit the Prime Minister with the best determination to keep Australia white in accordance with his promise. A Bill of this sort was before the Victorian Parliament a few years ago, and on that occasion I resented the tortuous, indirect manner in which the Colonial-office dictated to the colonies in the past the direction in which they should carry this legislation. We were told then that Victoria could not pass a law of this sort. There is some force in that objection. By herself Victoria would not have sufficient weight to legislate against the influx of Asiatics. But what about the Federal Parliament ? Is the Federal Parliament to be still in leading strings, as the different State Parliaments were? Are we to be hampered and told from another part of the world what is best for us, and what are to be our interests ? I want to know where we are. At the very start of our federal history I wish to know exactly how far we have our liberties. This is the best test that we can possibly have. Are we to be treated as schoolboys or men ? Are we to look after the interests of Australia, or to subordinate those interests to the interests of the old country ? I do not believe that in the mother country they will ever refuse to sanction the enactment of legislation which is put in the direct form in which the amendment proposes to put this legislation. Probably honorable members have heard of the story of little Lord John Russell. Sixty years ago the coast of Australia was not so well defined by the British authorities as it is now. At that time, when there was no Sir John Forrest to monopolize and appropriate all Western Australia, which is one third of the continent, the story was told that the French Government wished to get a foothold in Australia. The Ambassador of France in London was instructed to call on the Secretary for Foreign Affairs, Lord Russell, and to ask him which part of Australia it was that England claimed. The Ambassador saw Lord John Russell, who was a little man. In the room were a stool and a long ruler. Lord John Russell, in answer to the question put to him, mounted the stool and drew the ruler right round the map of Australia. "That, sir," he said, "is what England claims." If the British Ministry in those times refused to allow even the Frenchmen, with their genius and with their high ideals of civilization, to appropriate part of Australia, we are equally justified in refusing to allow Asiatics to invade our shores.
The morality of the Chinese is great in their own associations and in their own homes, where they have the traditions of their race and their own families about them. But when they are shifted from their moorings, and come amongst a race different from their civilization, then comes the hotch-potch and the mixture. Have honorable members seen the vices of the mixed races as they appear in San Francisco? I have been through the dens of San Francisco, and of all the sights I have ever seen, I have never witnessed any more degrading or filthy than those. Parliamentary Hansard, P 4655, Friday, 6 September 1901
Any man who has seized anything of the idea of the future of Australia must feel the vital importance of keeping out all races of an inferior type. Parliamentary Hansard, P 312, Thursday, 23 May 1901
Are we to say what we want, or are we to say what we do not want ? We do not want education in the sense that we will not admit people because they cannot read or write, and we do want a "White Australia." Why not say so? If it be true that the other course will lead to friction and make us hated, I prefer to be hated rather than have contempt with hatred. I prefer to state outright that we do not want yellow and black faces in Australia. I do not want diplomacy, but a straight-out statement of what we desire. It is not their bad qualities but their good qualities which make them dangerous to us. We frankly and openly say - "You are thrifty, industrious, and you are willing to work from morning to night for the mere satisfaction of your physical wants, and for that reason we will not have you." We frankly say that we want men with a higher standard of life, who will not be content with a low standard, or with low wages, but who are determined to get the best things the world can give them. Parliamentary Hansard, P 5077, Friday, 20 September 1901
Personal life
On 19 December 1885, Higgins married Mary Alice Morrison, the daughter of George Morrison, headmaster of Geelong College, and the sister of the journalist George Ernest Morrison. Their only child, Mervyn Bournes Higgins, was born in 1887, and was killed in action in Egypt in 1916.
After his son Mervyn's death, Higgins effectively adopted his nephew Esmonde Higgins and his niece Nettie Palmer, paying for their education at universities in Europe. He was pained by Esmonde's conversion to Communism in 1920 and his rejection of the liberal values associated with the Higgins name.
Aside from politics, he was president of the Carlton Football Club in 1904.
Legacy
Higgins was remembered for many years as a great friend of the labour movement, of the Irish-Australian community and of liberal and progressive causes generally. He was well-served by his first biographer, his niece Nettie Palmer, whose Henry Bournes Higgins: A Memoir (1931) created an enduring Higgins mythology. John Rickard (Australian historian)|John Rickard's 1984 H. B. Higgins: The Rebel as Judge partly demolished this myth, but was a generally sympathetic biography. The H.B. Higgins Chambers in Sydney, founded by radical industrial lawyers, is named for him.
Further, Higgins is commemorated by the federal electorate of Division of Higgins|Higgins in Melbourne, and by the Canberra suburb of Higgins, Australian Capital Territory.
